Correspondence from Edmisten and Wallace to Leonard; Motion to Consolidate and Request for Three-Judge Court

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nTnTLE CREEK SQUARE, LTD. v. NEW YORK ST. TEACH. RETIRE. SYS. 31
Cite as 404 F.2tl 31 <1!«8>

c see a patient and conscientious judge 
wh0 accorded appellant every considera- 
tjon despite appellant’s continual disre- 
■ trd for the truth and his attempts to 
!r'ock the administration of justice.

Affirmed.

»STÊ

21 TURTLE CREEK SQUARE, LTD., 
Appellant, 

v.
NEW  YORK STATE TEACHERS’ RE­

T IREM ENT SYSTEM, Appellee. 
No. 25936.

United States Court of Appeals 
Fifth Circuit.
Nov. 7, 1968.

Rehearing Denied Dec. 9,1968.

Action commenced in state court and 
removed to federal court. An appeal was 
taken by plaintiff from an order of the 
United States District Court for the 
Northern District o f Texas, Sarah 
Tilghman Hughes, J., quashing a writ of 
attachment. The Court of Appeals, 
Mehrtens, District Judge, held that 
where plaintiff had obtained personal 
jurisdiction over defendant and there 
was no question of loss of security 
should plaintiff prevail, order dissolving 
writ of attachment, which was the means 
by which jurisdiction had been obtained 
over defendant in action commenced in 
state court, was not a final appealable 
order.

Appeal dismissed.

L Courts ©=>405(2)
Court of Appeals must stay within 

limits of its statutory jurisdiction and 
must consider and determine its juris­

diction even though not questioned by 
parties.

2. Appeal and Error ©=782
I f  Court of Appeals determines, even 

though not questioned by parties, it is 
without jurisdiction, appeal must be 
dismissed. .

3. Courts ©=405(12.1)
When a seemingly interlocutory 

order has been held appealable, it is on 
theory that irreparable injury will re­
sult from dismissal of appeal or that the 
particular narrow issue with which order 
was concerned is wholly separable from 
remainder o f case and order terminates 
separable issue. 28 U.S.C.A. §§ 1291, 
1292.

4. Courts ©=405(12.10)
Where plaintiff had obtained per­

sonal jurisdiction over defendant and 
there was no question o f loss of security 
should plaintiff prevail, order dissolving 
writ of attachment, which was the means 
by which jurisdiction had been obtained 
over defendant in action commenced in 
state court, was not a final appealable 
order and appeal therefrom was dis­
missed.

Andrew T. Dalton, Jr., David M. 
Thornton, Thornton, Stamper & Dalton, 
Tulsa, Okl., for appellant.

Henry W. Simon, Fort Worth, Tex., 
for appellee.

Before RIVES and DYER, Circuit 
Judges, and MEHRTENS, District 
Judge.

MEHRTENS, District Judge:

Plaintiff-appellant, 21 Turtle Creek 
Square, Ltd. (Turtle Creek hereafter), 
appeals from an order quashing, vacat­
ing and dissolving a writ of attachment. 
The appeal is dismissed for lack of jur­
isdiction.

Turtle Creek, a Texas limited partner­
ship, was formed for the purpose of con­
structing and operating a high-rise

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32 404 FED ER AL EEPOETEE, 2d SERIES

apartment complex. A t a time when no 
permanent financing arrangements were 
in effect and when the interim lender, 
one Daniel Gevinson, became financially 
troubled, Turtle Creek actively sought 
a permanent lender. Turtle Creek and 
Teachers’ concluded that the former 
would own and operate the property 
while the latter would provide permanent 
financing. Thereupon, the parties here 
closed the permanent financing agree­
ment, a dispute over which is the nucleus 
o f this litigation. Turtle Creek says the 
agreement contemplated that all operat­
ing losses of the property incurred for 
two years, beginning August 1, 1964, 
would be repaid to Turtle Creek by 
Teachers’ in the form of an increase in 
mortgage amount. Teachers allegedly 
refused to honor the promise. Instead, it 
foreclosed Deeds of Trust held as se­
curity on the permanent financing and 
purchased the property at sale. Turtle 
Creek did not and has not conveyed title 
to Teachers’ .

C5r ioco 3Q4 -pod 161. The purpose nf 
the limitation upon jurisdiction to re­
view is to combine in one review aii 
stages of the proceeding, prevent piece­
meal litigation and eliminate delay con­
sequent upon needless interlocutory ap­
peals Cohen v. Beneficial Indus. Loan 
Corp., (1949), 337 U.S. 541, 69 S.Ct. 
1221, 93 L.Ed. 1528.

Jurisdiction of this court is limited 
under 28 U.S.C. § 1291 to appeals from 
final judgments of the District Courts 
and under 28 U.S.C. § 1292, which has 
no apparent application to this case, to 
certain interlocutory orders. For this 
court, therefore, to have jurisdiction, the 
order appealed from must be a final 
decision.

Turtle Creek commenced this action in 
the state court. Jurisdiction was ob­
tained by writ of attachment. The ac­
tion was removed to the United States 
District Court. Teachers’ motion to 
quash, vacate and dissolve the writ of 
attachment was granted by the District 
Court. Thereafter Turtle Creek had 
process issued and served under the 
Texas “ long arm statute.”  Teachers 
motion to quash this service was denied 
and it thereafter filed an answer.

[1, 2] A t the outset, we must inquire 
as to our own jurisdiction of the appeal. 
Mitchell v. Maurer, (1934), 293 U.S. 237, 
55 S.Ct. 162, 79 L.Ed. 338. It is essential 
fo r this court to stay within the limits 
o f its statutory jurisdiction and to re­
frain from deciding cases and questions 
which it has no authority to decide. The 
court therefore is bound to consider and 
determine its jurisdiction even though 
not questioned by the parties. I f  this 
court is without jurisdiction, the appeal 
must be dismissed. State Fire & Cas. 
To v  Red. Top Supermarkets, Inc., 5

Traditionally, a final decision has been 
defined as one which terminates the ac­
tion and leaves nothing to be done but 
the ministerial functions necessary to 
execute the judgment. Weston v. City 
Council of Charleston, S. C., (1829), 2 
Pet. 449, 27 U.S. 449, 7 L.Ed. 481; 
Gospel Army v. City of Los Angeles, 
(1947), 331 U.S. 543, 67 S.Ct. 1428, 91 
LE d . 1662; Anastasiadis v. S.S. Little 
John, 5 Cir. 1964, 339 F.2d 538. In 
Atlantic Lumber Co. v. L. Bucki & Son 
Lumber Co., 5 Cir. 1899, 92 F. 864, ac­
tions brought in the state court were 
consolidated after their removal to the 
federal court. Plaintiff appealed from 
two orders, the first an order dissolving 
an attachment, and the second from 
final judgment after trial. This court, 
citing Leitensdorfer v. Webb, 20 How. 
176, 185, 15 L.Ed. 891, and Hamner v. 
Scott, 8 Cir. 1894, 60 F. 343, held that 
an order dissolving an attachment was 
not such a final order from which an ap­
peal could be taken. See also Assets 
Collecting Co. v. Barnes-King Develop­
ment Co., 2 Cir. 1914, 209 F. 206, to the 
same effect.

-4
4

[ 3, 4] Later decisions of the Supreme 
Court have expanded the scope of final 
judgments beyond the limited class en­
compassed by the traditional rule and

libej

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: ~ S & ^ S 2 S -i 386, 84 S.Ct. i p - k̂ v_ Langdeau, 
rcantile Na^ ’ - gg g e t .  520, 9 L.
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e the Swift and Cote* r icated upon irreparable loss ot rg  

applicable here. ,
He order row appeaied * ^ “ d^  
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art with jurisdiction, b igdic_

he re fore dismissed for lac

OHIOOASOALKraSBKASOECO. 33
.2d 33 (1968)

.. „  . „ .TrAi, insurance  CO.,
* l b t K i  plain til' f-ApPe!',ee’

v.

leal dismissed.

OHI° ct£ E £ Z  - S S S S 0*
No. 18391- jg

United States Court of AM 
Sixth Circuit. ^0
Dec. 6, 19̂

, . j C n t  proceedings to
Declaratory|^ provided cover-

d e te rm in ew h ^ d su r j un.ted gtates

age for aedpen _ Western District 
DistriCtJ r  Henry L Brooks, J-, found

Bfach parents gav d enough to
mobile to college: was b roa^  ^

imply their Perm brother to use auto- 
ize his fraternity ffl to return
mobile when s it brother’s date
son’s date and t ^ J ev wa3 liable for 
home and parents s colUsion which
damages arising returned

ing his date home.
Affirmed.

Automobiles ^ 1 9 - missi0n which 
General blanket P ^  automoblle 

parents gave when gh to imply
to college was bro ^  ^  autborize bis
their permission uge automobile
fraternity brothe rgturn son’s date

when son bec^  ^ her’s date home and 
and fraternity b damages
pare„ts. W « « £ z *  « » « -  
arising °ut o returned borne and

— bs
date home.

John Sandidge.Bouis^1 , n &
den Woodward Woodward ^  ^
Fulton, Louisville, Ky., on 
pellant.

4 ;.1 F.2d—3

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